Superior Court Presiding Judge Robert C. Naraja denied the motion stating that the three government witnesses are still within the subpoena powers of the court.
Calvo appeared with his counsel G. Anthony Long for a hearing on June 19, 2009. The government was represented by Assistant Attorney General Brian Gallagher.
In his ruling, Naraja stated that since the Commonwealth Rules of Criminal Procedure are modeled after the Federal Rules of Criminal Procedure, the interpretation of the federal rules in instructive.
“When Rule 15 was adopted, it was contemplated that in criminal cases depositions would be used only in exceptional situations,” the order stated.
The trial for this case is scheduled to commence on Sept. 14, 2009 and the government has been informed that three of its witnesses will be on the mainland attending college.
Naraja stated that the government has moved the court to allow these witnesses to be deposed but it has not made an attempt to prove the exceptional circumstances required of the rule.
“Instead, in its motion and reply brief, the government merely states that these witnesses will be off-island attending college,” Naraja said. The order stated that the government “mistakenly believes that it is entitled to depose these witnesses under Rule 15 without fulfilling the exceptional requirement of that rule.”
The court said the defendant’s argument is misplaced, as “unavailability is a requirement to the admissibility of the deposition at trial but not to actually taking the deposition.”
The court denied the motion because there is no list of factors for the court to look into. Naraja said that in a situation dealing with student witnesses, the Ninth Circuit allowed the deposition of four foreign students planning on returning to their own country.
But Naraja said that in this case, the three students who are government’s witnesses will be attending college on the mainland U.S. during the time of trial are still within the subpoena power of the court.
Naraja also said that presumably, these witnesses are healthy and would be able to attend the trial but for being away at college.
The judge said that unlike other Ninth Circuit cases which presented truly exceptional circumstances where there is almost no possible way the government could procure the witness at trial, it is not applicable in this case.
“There are other options the government can pursue to obtain the presence of these witnesses at trial, however inconvenient those options may be,” Naraja stated.
He added the government could schedule the trial during the summer vacation or other break, or when these students would go home to the CNMI.
Naraja held that if the witnesses can never be compelled to return to the CNMI and there is no chance that the witnesses will voluntarily return here, then it would be appropriate to depose the witnesses because there are no other options available to have the witnesses’ testimony at trial.
Calvo, former president of the Rotary Club of Saipan was charged with sexually assaulting a 13-year-old girl on June 11, 2008.
He entered a not guilty plea to charges of sexual assault in the second degree, sexual abuse of a minor in the second degree, sexual abuse of a minor in the third degree, and disturbing the peace.
